[Federal Register Volume 74, Number 189 (Thursday, October 1, 2009)]
[Rules and Regulations]
[Pages 50903-50904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23514]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0066]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/ALL--017 General Legal Records System of Records
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security is issuing a final rule to
amend its regulations to exempt portions of a Department of Homeland
Security system of records entitled the ``Department of Homeland
Security/ALL--017 General Legal Records System of Records'' from
certain provisions of the Privacy Act. Specifically, the Department
exempts portions of the Department of Homeland Security/ALL--017
General Legal Records system from one or more provisions of the Privacy
Act because of criminal, civil, and administrative enforcement
requirements.
DATES: Effective Date: This final rule is effective October 1, 2009.
FOR FURTHER INFORMATION CONTACT: For general questions and privacy
issues, please contact: Mary Ellen Callahan (703-235-0780), Chief
Privacy Officer, Privacy Office, U.S. Department of Homeland Security,
Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
Background
The Department of Homeland Security (DHS) published a notice of
proposed rulemaking in the Federal Register, 73 FR 63084, October 23,
2008, proposing to exempt portions of the system of records from one or
more provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements. The system of records is the
DHS/ALL--017 General Legal Records system. The DHS/ALL--017 General
Legal Records system of records notice was published concurrently in
the Federal Register, 73 FR 63175, October 23, 2008, and comments were
invited on both the notice of proposed rulemaking and system of records
notice. Comments were received on the notice of proposed rulemaking and
no comments were received on the system of records notice.
Public Comments
DHS received one comment on the notice of proposed rulemaking. The
comment received focused on the expansiveness of the exemptions,
specifically subsection (e)(2) ``Collection of Information from
Individuals.'' The public comment recommended that DHS rely on the
Freedom of Information Act (FOIA) when screening information for
release and not Privacy Act exemptions because the FOIA would
potentially allow for higher probability of information release.
Although the comment was intended to be helpful, current FOIA
processing practices eliminate the requester's concern. If a first
party requester makes a request for records under the Privacy Act and
those records are exempt from disclosure, DHS will automatically
process that request under the FOIA. Should the record be releasable
under FOIA, despite not being releasable under the Privacy Act, the
record will be released to the first party requester. This is
consistent with Department of Justice guidance and directives,
including the Overview of the Privacy Act of 1974, 2004 Edition (http://www.usdoj.gov/oip/1974indrigacc.htm). The same commenter observed that
the notice in question states that ``applicable exemptions may be
waived on a case by case basis.'' This is standard language for all
proposed and final exemptions at DHS to ensure that where it is
possible to release records, DHS will do so. In application to this
system of records, though, the commenter acknowledges the legitimate
need to exempt some records due to national security, investigations,
and other reasons, but that other records would not be of such concern
such as records relating to ``foreclosures, titles to property, copies
of petitions filed with DHS, and some records of discrimination.'' The
commenter is concerned that DHS could refuse record requests for the
latter types of records by simply including them in this exempted
system of records notice.
The process in place to review records, to ensure they meet
specifically requested records, today addresses the comments.
DHS carefully reviewed the public comment received on the notice of
proposed rulemaking and the recommendations within the public comment.
DHS has determined that since this system is to assist DHS attorneys in
providing legal advice to DHS senior leadership and management on a
wide variety of legal issues, to collect the information of any
individual who is, or will be, in litigation with the Department, as
well as the attorneys representing the plaintiff(s) and defendant(s),
it is important that the exemptions remain in place. DHS will implement
the rulemaking as proposed.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
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For the reasons stated in the preamble, DHS amends Chapter I of Title
6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
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1. The authority citation for Part 5 continues to read as follows:
Authority: Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et
seq.; 5 U.S.C. 301.
[[Page 50904]]
Subpart A also issued under 5 U.S.C. 552. Subpart B also issued
under 5 U.S.C. 552a.
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2. In Appendix C to Part 5, add a new paragraph 39 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
39. The DHS/ALL--017 General Legal Records system of records
consists of electronic and paper records and will be used by DHS and
its components. The DHS/ALL--017 General Legal Records system of
records is a repository of information held by DHS in connection
with its several and varied missions and functions, including, but
not limited to: The enforcement of civil and criminal laws;
investigations, inquiries, and proceedings thereunder; national
security and intelligence activities; and protection of the
President of the United States or other individuals pursuant to
Section 3056 and 3056A of Title 18. The DHS/ALL--017 General Legal
Records system of records contains information that is collected by,
on behalf of, in support of, or in cooperation with DHS and its
components and may contain personally identifiable information
collected by other Federal, State, local, tribal, foreign, or
international government agencies. The Secretary of Homeland
Security has exempted this system from the following provisions of
the Privacy Act, subject to the limitations set forth in 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G),
(e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f), and (g), pursuant to
exemption 5 U.S.C. 552a(j)(2). Additionally, the Secretary of
Homeland Security has exempted this system from the following
provisions of the Privacy Act, subject to the limitations set forth
in 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (I), and
(f), pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3) and (k)(5).
Exemptions from these particular subsections are justified, on a
case-by-case basis to be determined at the time a request is made,
for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures)
because release of the accounting of disclosures could alert the
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation to the existence of the
investigation, and reveal investigative interest on the part of DHS
as well as the recipient agency. Disclosure of the accounting would
therefore present a serious impediment to law enforcement efforts
and/or efforts to preserve national security. Disclosure of the
accounting would also permit the individual who is the subject of a
record to impede the investigation, to tamper with witnesses or
evidence, and to avoid detection or apprehension, which would
undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to
the records contained in this system of records could inform the
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation, to the existence of the
investigation, and reveal investigative interest on the part of DHS
or another agency. Access to the records could permit the individual
who is the subject of a record to impede the investigation, to
tamper with witnesses or evidence, and to avoid detection or
apprehension. Amendment of the records could interfere with ongoing
investigations and law enforcement activities and would impose an
impossible administrative burden by requiring investigations to be
continuously reinvestigated. In addition, permitting access and
amendment to such information could disclose security-sensitive
information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of
Information) because in the course of investigations into potential
violations of Federal law, the accuracy of information obtained or
introduced occasionally may be unclear or the information may not be
strictly relevant or necessary to a specific investigation. In the
interests of effective law enforcement, it is appropriate to retain
all information that may aid in establishing patterns of unlawful
activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from
the subject of an investigation would alert the subject to the
nature or existence of an investigation, thereby interfering with
the related investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information would impede law enforcement in
that it could compromise investigations by: Revealing the existence
of an otherwise confidential investigation and thereby provide an
opportunity for the subject of an investigation to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative efforts; reveal the identity of witnesses in
investigations, thereby providing an opportunity for the subjects of
the investigations or others to harass, intimidate, or otherwise
interfere with the collection of evidence or other information from
such witnesses; or reveal the identity of confidential informants,
which would negatively affect the informant's usefulness in any
ongoing or future investigations and discourage members of the
public from cooperating as confidential informants in any future
investigations.
(f) From subsections (e)(4)(G), (H), and (I) (Agency
Requirements), and (f) (Agency Rules) because portions of this
system are exempt from the individual access provisions of
subsection (d) for the reasons noted above, and therefore DHS is not
required to establish requirements, rules, or procedures with
respect to such access. Providing notice to individuals with respect
to existence of records pertaining to them in the system of records
or otherwise setting up procedures pursuant to which individuals may
access and view records pertaining to themselves in the system would
undermine investigative efforts and reveal the identities of
witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because
in the collection of information for law enforcement purposes it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. Compliance with (e)(5) would
preclude DHS agents from using their investigative training and
exercise of good judgment to both conduct and report on
investigations.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS' ability to obtain, serve, and
issue subpoenas, warrants, and other law enforcement mechanisms that
may be filed under seal, and could result in disclosure of
investigative techniques, procedures, and evidence.
(i) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act relating to
individuals' rights to access and amend their records contained in
the system. Therefore DHS is not required to establish rules or
procedures pursuant to which individuals may seek a civil remedy for
the agency's: Refusal to amend a record; refusal to comply with a
request for access to records; failure to maintain accurate,
relevant, timely and complete records; or failure to otherwise
comply with an individual's right to access or amend records.
Dated: September 23, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-23514 Filed 9-30-09; 8:45 am]
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